Punjab-Haryana High Court
Hari Singh vs State Of Punjab And Others on 8 February, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
LPA No. 1809 of 2011 (O&M)
Date of Decision: February 8, 2012
Hari Singh
...Appellant
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE ALOK SINGH
Present: Mr. Deepak Sibal, Advocate,
for the appellant.
1. To be referred to the Reporters or not?
2. Whether the judgment should be
reported in the Digest?
M.M. KUMAR, J.
1. This appeal filed under Clause X of the Letters Patent challenges judgment dated 1.4.2011 rendered by the learned Single Judge dismissing the writ petition filed by the petitioner- appellant.
2. Few facts may first be noticed. The petitioner-appellant belongs to the reserved category of Scheduled Caste. On 1.8.1973, he was appointed as a Clerk by way of direct recruitment which was made by the Subordinate Selection Board, Punjab. On 25.6.1973, he was placed at Sr. No. 176 in the merit list. On 21.11.1977, the petitioner-appellant was promoted as an Assistant. On 30.5.1994, he was appointed as a B-Class Tehsildar by way of transfer. However, his lien on the post of Clerk was retained in his parent LPA No. 1809 of 2011 (O&M) 2 department i.e. in the Financial Commissioner's Secretariat. On 6.7.1995, he was given proforma promotion as Superintendent Grade-I. On 3.8.1995, a provisional joint seniority list of Superintendent Grade-I and Private Secretaries was circulated, wherein the name of the petitioner-appellant figured at Sr. No. 171 and he was shown to have been assigned seniority as Superintendent Grade-I w.e.f. 1.6.1992. After the judgment of Hon'ble the Supreme Court in the case of Ajit Singh Janjua v. State of Punjab (CA No. 3792- 3792-94 of 1989 and CA No. 4763- 4763-65, decided on 1.3.1996), 1.3.1996) the petitioner-appellant and some other persons were promoted as Superintendent Grade-I. The said promotion being in excess of their prescribed quota of reservation, they were reverted back to their substantive post of Senior Assistant, vide order dated 31.5.1996. This led to filing of CWP No. 8573 of 1996, which was disposed of vide judgment dated 6.11.1991. This Court after noticing para 2 of the notification dated 5.11.2001 issued by the State of Punjab, set aside the reversion order and directed that they would continue to hold promotional post. It was further directed that they would be entitled to all other monetary benefits attached to the posts except seniority. In this manner, the petitioner- appellant was deemed to be promoted as Superintendent Grade-I on ad hoc basis.
3. On 10.1.2002, the vacancy belonging to the quota of the petitioner-appellant became available and accordingly he was promoted as Superintendent Grade-I on regular basis. It has also come on record that on 4.4.2006, a tentative seniority list of Superintendent Grade-I in the Financial Commissioners' Secretariat, LPA No. 1809 of 2011 (O&M) 3 Punjab was issued, which was finalised on 29.9.2006 and circulated vide Endst. No. 1/17/2004-1-Admn.1/5644, dated 3.10.2006. In the said final seniority list, the name of the petitioner-appellant figures at Sr.No.50 and he has been assigned the date of promotion as Superintendent Grade-I w.e.f. 10.1.2002. The period from 1.6.1992 to 9.1.2002 has been shown as 'ad hoc basis' (P-9 & P-10). On 11.11.2002, the petitioner-appellant was posted back as Superintendent Grade-I to his parent department i.e. Financial Commissioner's Secretariat, Punjab. Feeling aggrieved, the petitioner-appellant has filed the writ petition relatable to the instant appeal.
4. The learned Single Judge has noticed that the petitioner- appellant was granted roster point promotion on the post of Superintendent Grade-I, vide order dated 6.7.1995. He was assigned seniority w.e.f. 1.6.1992 without disclosing any basis or reason for grant of seniority from that date. It has also been noticed that the petitioner-appellant is, in fact, seeking the benefit of 85th Constitutional Amendment, whereby Article 16(4A) was introduced in the year 2001. The said amendment was subject matter of challenge before Hon'ble the Supreme Court in the case of M. Nagaraj v. Union of India, India, (2006 (2006) 2006) 8 SCC 212.
212 In the said case Hon'ble the Supreme Court has upheld the 85th Constitutional Amendment after interpreting its object, purport, import and true application. After noticing various paras of the judgment rendered in M. Nagaraj's case (supra) (supra), the learned Single Judge directed the respondents to inform whether any provision has been made by the State for granting 'consequential seniority' to the roster point LPA No. 1809 of 2011 (O&M) 4 promottees of the reserved category candidates. In response the State has placed on record the communication dated 7.3.2011 addressed by the Under Secretary, Revenue (Admn.) to the office of the Advocate General, Punjab, and another communication dated 30.3.2011 addressed by the Chief Secretary to Government of Punjab to the Advocate General, Punjab. The petitioner-appellant also placed on record a memo dated 30.9.2010 to show that the Cabinet has considered the question on grant of 'consequential seniority' on roster promotion in view of the 85th Constitutional Amendment and in the light of the directions issued in the case of M. Nagaraj (supra).
(supra)
5. Having considered the entire material placed on record, the judgment of Hon'ble the Supreme Court rendered in the case of M. Nagaraj (supra) and a judgment of this Court rendered in the case of Pritpal Singh v. State of Punjab, Punjab, 2010 (1) SCT 774, 774 the learned Single Judge dismissed the writ petition by observing as under:-
" In the above circumstances what emerges is that the State has the absolute power and authority to make provisions for grant of 'consequential seniority' on roster promotion in implementation of the 85th Constitutional Amendment under Article 16(4A). However, with a view to enforce the Constitutional mandate, the State is under constitutional obligation to collect the data/material in respect of the entire gamut of reservation which inter alia, includes the population of the State, the infirmity being suffered by the class of LPA No. 1809 of 2011 (O&M) 5 reserved categories, their representation in services and the desire of the State to grant them such benefit of seniority as a social reform in the State of Punjab. No such material has been placed on record except a letter of the Chief Secretary which does not indicate any material which might have been collected and taken into consideration by the State. A decision simplicitor to continue seniority on roster promotion on the strength of interim orders passed by the Supreme Court is in fact, not inconsonance with the mandate of Article 16(4A), rather it is derogation of the spirit of the 85th Constitutional Amendment as also judgment of Hon'ble Supreme Court in case of M. Nagaraja (supra). While rejecting the contention of the State as well as of the petitioner, the Court is left with no option but to hold that as on date, the State has not enacted or made any provision for grant of 'consequential seniority' to roster promottees as mandated by Article 16(4A).
This writ petition is accordingly, dismissed. However, it will not prevent the State from making any provision in accordance with the mandate of the judgment in M Nagaraj and others Vs. Union of India and others."
6. Having heard learned counsel for the petitioner-appellant we are of the considered view that there is no legal infirmity in the view taken by the learned Single Judge warranting interference by this Court. Despite opportunity having been granted by the learned LPA No. 1809 of 2011 (O&M) 6 Single Judge as well as by this Court, the petitioner-appellant has not been able to place on record any quantifiable data showing the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency for granting the benefit of seniority as a social reform in the State of Punjab. The learned Single Judge has rightly observed that in the absence of such material, a decision simplicitor to continue seniority on roster promotion on the strength of interim orders passed by Hon'ble the Supreme Court is not in consonance with the mandate of Article 16(4A) of the Constitution. Accordingly, we hold that the instant appeal is devoid of merit and does not warrant admission. Dismissed.
(M.M. KUMAR)
JUDGE
(ALOK SINGH)
SINGH)
February 8, 2012 JUDGE
PKapoor